“FROM RUSSIA” WITHOUT LOVE: CAN THE SHCHUKIN HEIRS RECOVER THEIR ANCESTOR’S ART COLLECTION? Jane Graham* Abstract Sergei Shchukin’s vast modern art collection was confiscated in 1917 by Lenin during the Soviet Nationalizations. Since then the Shchukin heirs have tried in courts around the world to recover “their” artwork, with the most recent development in London during the recent “From Russia” exhibit amid scandal in early 2008. The article first traces the Shchukin family’s legal attempts at reclaiming their property. Then the article examines the recently enacted British legislation, “Part 6 of the Tribunals, Courts, and Enforcement Act of 2007.” The article then compares the new British legislation with similar immunity-from-seizure legislation in the United States. The article then compares the case law of the United States and United Kingdom to demonstrate how the immunity from seizure laws have been interpreted differently. Finally, the article looks at the various options the Shchukin heirs have at recovery and or reparations, and forecasts whether or not they would be successful – or should be. INTRODUCTION “This is the biggest hold-up in art history," declared Andre-Marc Deloque-Fourcaud, as the Royal Academy unveiled the contents of “From Russia” in London in January 2008.1 Deloque-Fourcaud is the grandson of Sergei Shchukin and heir to his vast modern painting collection from late nineteenth and early twentieth century Russia. Shchukin’s collection was confiscated by Lenin during nationalization in 1918. Of the 120 works in the “From Russia” exhibition, twenty-three works were once owned by Sergey Shchukin and thirteen were owned *The author would like to thank Prof. David Abraham for his guidance, advice, and patience with this essay. The author would also like to thank Prof. Stephen Urice for his guidance and for sparking her curiosity in the field of cultural property law. 1 ‘From Russia’ Art Claimants Want Compensation from Russia, GOOGLE NEWS, Jan. 22, 2008, http:// afp.google.com/article/ALeqM5iti0qRrATD9xRlNm6uxbTq5ZjZwA. 66 by Morozov, another Russian tzarist era collector.3 Some notable works in the “From Russia” exhibit include The Dance by Henri Matisse, The Dryad by Pablo Picasso, The Bath of the Horse by Kuzma Petrov-Vodkin, Manifesto of October 17th by Ilya Repin, Her Name was Vairaumati by Paul Gauguin, and Portrait of Doctor Rey by Vincent Van Gogh.4 Deloque-Fourcaud, who currently lives in Paris, estimated his grandfather’s paintings were valued conservatively at $3 billion ten years ago and claims the collection is worth at least twice that amount today.5 Deloque-Fourcaud questions the “extremely violent way in which these extraordinary collections, gathered over many years by our forefathers, were taken.” He argues there should be "an agreement made that reasonably compensates and pays a percentage of the material benefits that accrue from exploitation of the works."6 However, before Deloque-Fourcaud could bring a claim on British soil in an attempt to recover these paintings, the United Kingdom passed a piece of legislation, which would bar such a claim.7 The “immunity from seizure” legislation, or Part 6 of the Tribunals, Courts and Enforcement Act of 2007, was due to be implemented in February 2008. By the urging of Culture Secretary James Purnell, the law was instituted on December 31, 3 Mark Brown, Russian Collectors' Heirs Want Compensation for Lost Art, THE GUARDIAN, Jan. 22, 2008, www.guardian.co.uk/uk/2008/jan/22/art.artnewsn. 4 From Russia French and Russian Master Paintings 1870-1925 from Moscow and St. Petersburg, http:// www.royalacademy.org.uk/exhibitions/from-russia/about-the-exhibition/from-russia-french-and-russian-master- paintings-18701925-from-moscow-and-st-petersburg,550,AR.html (last visited June 6, 2009). 5 Russian Art Show Opens in the Capital Amid Ownership Row, GULF TIMES, Jan. 23, 2008, available at http:// www.gulftimes.com/site/topics/article.asp?cu_no=2&item_no=197375&version=1&template_id=38&parent_id 20 6 Brown, supra note 2. 7 Russia approves UK art exhibition, BBC – NEWS, Jan. 10, 2008, http://news.bbc.co.uk/2/hi/entertainment/ 7180714.stm. 67 2007, when the Russian authorities threatened to withdraw the “From Russia” exhibition at the Royal Academy.8 This article will trace the history of the Shchukin art collection, the circumstances under which it was nationalized, and the Shchukin family’s subsequent attempts at reclaiming their property. Then, this article will examine the language and legislative history of Part 6 of the Tribunals, Courts, and Enforcement Act of 2007, the political and legal context in which it was written, its interplay with United Nations and European Union cultural property laws, and its effect on cultural property restitution and reparations in the United Kingdom. Then, this paper will compare the British “immunity from seizure” legislation to similar statutes in the United States, including 22 U.S.C. § 2459 and the Foreign Sovereign Immunities Act. Recent case law involving cultural property claims in the United Kingdom and the United States will also be compared to demonstrate how “immunity from seizure” statutes have been interpreted by different courts. Finally, this article will look at various options the Deloque-Fourcaud family may exercise, and forecast whether or not they would be successful. I. BACKGROUND OF THE “FROM RUSSIA” EXHIBITION a. History of the Shchukin Collection From the latter half of the 18th Century, the Shchukin were an established family in Moscow. Ivan Shchukin, the patriarch, was a successful businessman in the textile industry, and attained a net worth of 4 million gold rubles.9 When Ivan Shchukin married the daughter of Pyotr Konovich Botkin, a prominent tea merchant and avid patron of the arts, Shchukin was 8 Id. See also Mark Stephens, A Common Thief Does Not Obtain Ownership of Stolen Goods, and it is no Different When the Thieves are the Bolsheviks, THE ART NEWSPAPER, Jan. 31, 2008, http://www.theartnewspaper.com/ article.asp?id=7511. 9 BEVERLY WHITNEY KEAN, ALL THE EMPTY PALACES: THE MERCHANT PATRONS OF MODERN ART IN PRE- REVOLUTIONARY RUSSIA 126 (1983). 68 introduced to arts and culture, and started collecting art.10 Ivan Shchukin had eleven children. Sergei was the third son of the family.11 Sergei loved to visit his uncle Mikhail Botkin in St. Petersburg to look at his paintings and sculptures. Sergei was shrewd and ambitious, and when he grew older, Sergei became the head of the family’s business.12 As a well-to-do textile businessman, Sergei Shchukin was part of a new merchant class, a bourgeoisie which could not identify with the Russian aristocracy as landed elite, but who were despised by the working class. In 1897, Sergei Shchukin bought his first Monet painting, marking the beginning of a large art collection. Within twelve years Shchukin amassed a varied collection of Western Art, including twelve more Monet paintings, and an assortment of Pissarro, Sisley, Renoir, and Gauguin works. In 1893, Ivan bought his son Sergei the Trubetskoy Palace and presented it to him as the future site of the Shchukin collection.13 For his collection, Sergei Shchukin bought major works by Matisse, Cezanne and Picasso. Shchukin loved Matisse’s work so much that in 1909, he commissioned the artist to paint Dance and Music for two large decorative panels.14 These paintings hung on the staircase landing in the Trubetskoy Palace, alongside 36 other 10 Id. at 127. 11 Id. at 133. 12 Id. at 134. 13 Id. at 135. 14 Henri Matisse, http://www.moodbook.com/history/modernism/henri-matisse-music-dance.html (last visited June 6, 2009). 69 important Matisses, fifty Picassos, sixteen Gauguins, four Van Goghs and a roomful of Cézannes. 15 b. Political Backdrop of Russian Revolution of 1917 Era With the 1914 outbreak of the First World War, there was a new upsurge of Slavic patriotism. This was a time where all Russian classes met in cathedrals, and as commentators at the time declared, “war was declared and all at once not a trace was left of the revolutionary movement.”16 This did not last for long. After the demoralizing defeat for Russia at the Battle of Tannenberg, the mood changed to bitterness, and class hatreds started seething again.17 By 1917, murmurs of revolution started. Shchukin heard that a friend, Lunacharsky, the son of a textile merchant, was jailed as an agitator. Shchukin decided that his wife and young daughter could not remain in Russia. With fake papers, Shchukin’s wife and daughter left for Weimar, Germany.18 On November 7, 1917, the Congress of Soviets convened in Petrograd. The next evening, Lenin declared, “we shall now proceed to construct the Socialist order.”19 Winter Palace was taken by the revolutionaries and members of the Kerensky cabinet were arrested and led into conference room by Red Guards. On December 1917, the nationalization of all industries was legalized. In January 1918, Shchukin was arrested. He was then taken to local headquarters for questioning, and was soon imprisoned. After a brief time, Shchukin was informed by a 15 Id. See also Wlademar Januszczak, From Russia at the Royal Academy: The Russian Bear Courts Colourful Miss France in the Show of the Year So Far, Writes Waldemar Januszczak, TIMES (London), Jan. 27, 2008, available at http://entertainment.timesonline.co.uk/tol/arts_and_entertainment/visual_arts/article3241245.ece. 16 KEAN, supra note 8, at 126. 17 Id. at 245. 18 Id. at 253. 19 Id. at 254. 70 delegation that all his artistic works in private collections were to become property of the State and would be administered by the People’s Commissariat for Enlightenment. The Trubetskoy Palace and Ivan Morozov’s home were to become two museums of Modern Western Art and would be opened to the public.20 Ironically, a short time later Sergei Shchukin was offered the position of guide and curator for the new museum, and he promptly accepted.